KELLY v. KINDER MORGAN, INC.

Filing 32

MEMORANDUM that Defendants Motion for Summary Judgment 22 is GRANTED IN PART and DENIED IN PART. SIGNED BY DISTRICT JUDGE ANITA B. BRODY ON 8/28/24. 8/28/24 ENTERED AND COPIES E-MAILED.(jwl)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRUCE KELLY, JR.,
Plaintiff
v.
KINDER MORGAN, INC.,
Defendant.

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CIVIL ACTION
NO. 23-1595

August 28, 2024

Anita B. Brody, J.
MEMORANDUM

Plaintiff Bruce Kelly, Jr. brings this action against Defendant Kinder
Morgan, Inc., his employer until his termination in 2022. Kinder Morgan operates
terminals throughout North America that store and handle fuels and other liquid
and dry bulk materials. Kelly supervised the loading and offloading of cargo at its
Philadelphia-area terminal. Kelly alleges violations of the Americans with
Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Age
Discrimination in Employment Act (“ADEA”), and the Pennsylvania Human
Relations Act (“PHRA”).1 Kinder Morgan moves for summary judgment (ECF
No. 22), and for the reasons stated below, I will grant the motion in part and deny
the motion in part.

1

I exercise jurisdiction under 28 U.S.C. §§ 1331 and 1367.
1

I.

BACKGROUND
A.

Employment history

Kelly began his career working at the stevedoring terminal along the
Delaware River in Fairless Hills, Pennsylvania in 1995. In 1997, he took a
position as a union worker with Kinder Morgan’s predecessor, where he rose to the
position of a supervisor. Kinder Morgan acquired the terminal in 2004 and hired
Kelly to continue to work as a supervisor there. Def.’s Statement of Undisputed
Material Facts (“Def.’s SUMF”) ¶¶ 1-2, 18, ECF No. 24. Kelly ultimately held the
title of Operations Superintendent and served as the only manager who oversaw
the night shift, where several crew leaders reported to him. Kelly reported to Larry
Bragg, the Operations Manager. Def.’s SUMF ¶¶ 21-34, 38, ECF No. 24. Bragg,
who primarily worked during the day, viewed Kelly as akin to his counterpart on
the night shift. He expected Kelly to be aware of everything that was going on at
the terminal at night and communicate those developments so that the day shift
could plan their day productively. Def.’s SUMF ¶ 32, ECF No. 24.
Kelly took FMLA leaves of absence at various times during his employment
at Kinder Morgan. In 2016, he took FMLA leave for gastric bypass surgery. In
2020, he took FMLA leave to have a stimulator device implanted in his back to
address back and leg pain associated with a prior injury. Def.’s SUMF ¶ 46, ECF
No. 24.

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B.

Negative performance review

In the summer of 2021, management began to prepare documentation and
notice to Kelly that his performance was not meeting expectations. Bragg decided
to put Kelly on a Performance Improvement Plan (“PIP”). Def.’s SUMF ¶ 72.
With the input of Gregg Hartnett, the Terminal Manager, Bragg drafted a
memorandum to Kelly about the need to participate in a performance improvement
process. Def.’s SUMF Ex. 16, ECF No. 24-16; Pl.’s Opp. Ex. J, ECF No. 27-13.
The memorandum identified three “Examples” of performance deficiencies that
Bragg and Hartnett had identified: (1) “You need to make better operational
decisions on the shift you are responsible for overseeing,” with particular examples
cited; (2) “Your communication and participation needs to be improved,” with
particular examples cited; and (3) “You have missed work and used unscheduled
leave multiple times in the past 6 months. These instances have put the terminal
and team at a disadvantage and had negative impacts on operations.” Def.’s
SUMF Ex. 16, ECF No. 24-16.
Utilizing a Kinder Morgan form, Bragg also completed the employer portion
of a written PIP form in which the employee was to add his response as to the
specific actions he would take to correct the areas identified as a performance
deficiency. Def.’s SUMF Ex. 17, ECF No. 24-17. The PIP form ultimately
identified four areas of performance deficiency, repeating the areas of (1) and (2)
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from the lengthier memorandum and characterizing the remaining areas as: (3)
“Your duties observing vessel conditions, boarding vessels to see operations and
overseeing the calls made by crew leaders needs to be improved”; and (4) “You
must improve your attendance and schedule your leave in a timelier manner. In the
past few months you have taken unscheduled leave numerous times for issues or
circumstances at home.” Def.’s SUMF Ex. 17, ECF No. 24-17. Finally, Bragg
prepared a draft of a Performance Evaluation review form for Kelly, in the nature
of a mid-year review, which reflected that Kelly was not then meeting expectations
in 11 of the 15 competencies expected of Kinder Morgan management employees.
Def.’s SUMF Ex. 15, ECF No. 24-15. On August 30, 2021, Bragg called Kelly
into a meeting and presented him with the various documents concerning the PIP.
Def.’s SUMF ¶ 67, ECF No. 24.
At the conclusion of the meeting, Kelly agreed to participate in the PIP
process. He completed his portion of the PIP form where he was to describe how
he would improve in the four areas identified by Bragg. As to the fourth of the
four “performance deficiencies,” which concerned attendance and the timely
scheduling of leave, Kelly responded:

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Pl.’s Opp. Ex. J, ECF No. 27-13.
Kelly met with Bragg periodically to review his progress under the PIP. At
some of those sessions, Bragg noted that Kelly had improved, and attendance was
not cited as a continuing issue. But notes from other sessions reflect that Kelly still
did not meet Bragg’s expectations in other areas on a consistent basis. Def.’s
SUMF ¶ 100, ECF No. 24; Def.’s SUMF Exs. 19-21, ECF Nos. 24-19, 24-20, 2421. The last progress meeting that Bragg held with Kelly before the 90-day PIP
was initially set to end was on November 11, 2021. Def.’s SUMF ¶ 107, ECF No.
24. At that time, Bragg marked Kelly’s performance as “acceptable” in three of
the four designated problem areas, but not with respect to “communications with
operational items and increas[ing his] participation in required areas at the
terminal.” Pl.’s Opp. Ex. N, ECF No. 27-17.

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C.

FMLA leave

On November 29, 2021, the day before the PIP period was set to expire,
Kelly reported that he would be absent for his shift, telling Bragg that it was due to
kidney stones. Def.’s SUMF ¶ 107, ECF No. 24. However, shortly thereafter,
Kelly wrote this email to Hartnett, the Terminal Manager:
Gregg I’m writing only you because I want to be honest
in what’s going on but really don’t want the entire world
knowing my business. I don’t have kidney stones I regret
sending that email but at the time wasn’t sure what to do.
Being your TM and we’ve known each other a very long
time I figured I’d open communication with you.
I’ve taken pain medication for many years for my back
and my legs. I’ve decided to come off the medication
because it seems the spinal stimulator I had put in my
back is controlling things pretty good but I’ve taken this
medication so long I have to detox from it and this I
wouldn’t wish on anyone. Not even Larry! Im doing it
from home and it’s doctor supervised it’s just going to
take time to get out of my system. I’ll be the better for it
once it’s all done but right now it sucks!!!
I know I’m on the PIP and feel I have really got the night
shift running well but had to do this now. I've been
putting it off and putting it off and I want to start 2022
fresh and new. I promise you I will be the better for it
and I hope you’ll give me a chance to prove it with this
PIP hanging over me.
Again I hope we can keep this between us and I’ll keep
you informed. My doctors office will take care of all the
paperwork.
Pl.’s Opp. Ex. P, ECF No. 27-19. Kinder Morgan approved Kelly for a period of
FMLA leave beginning November 30, 2021. Def.’s SUMF ¶ 46, ECF No. 24.
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Kelly’s abrupt announcement that he was going out on leave was not wellreceived by Kinder Morgan’s management. A December 1 internal email from the
Hartnett to Regional Manager Christopher Hamm and HR Regional Manager
David Price stated:
Dave/Chris
I am not sure how to describe Bruce’s status or how to
proceed. Larry and I don’t believe he is showing the
improvement we would like to see and we were
contemplating termination or extending the current PIP
when we were just blindsided by Bruce’s attached
emails. If you read the emails attached you can see
Bruce last minute missed his shift again claiming he had
kidney stones but then sends an email only to me saying
that he is detoxing from the prescriptions drugs he has
been on for his back and has wanted to do this for a while
now. In my opinion Bruce is not a workforce employee
or even a crew leader who we would expect this type of
poor planning and communication from but is a manager
who if was planning to go off his medication and now
cannot make it into work is part of the reason he was
placed on the PIP to begin with. I am not sure how to
proceed or how to even answer Bruce. Attached are the
last few meeting notes as well as Larry’s notes he did not
sign and give back the notes from 11/11 which was his
last meeting due to the holidays he would have had a
meeting tomorrow had he not missed work now. I am
not sure if you both would like to discuss the proper
course of action with this but I have not answered
Bruce’s email as of yet.
Pl.’s Opp. Ex. Q, ECF No. 27-20.
Kelly returned to work following his FMLA leave. He took additional time
off in January 2022 when his mother died, following which both he and his wife
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caught Covid, which required him to be out for an additional period. He next had a
PIP meeting with Bragg on February 9, 2022. Bragg rated him as unacceptable in
all four areas indicated in the plan. As to the attendance area, Bragg noted that
Kelly was still not providing ample notice when calling out “for personal issues.”
Pl.’s Opp. Ex. Y, ECF No. 27-28; Def.’s SUMF Ex. 22, ECF No. 24-22.
D.

Termination

Internal emails between February 14 and 23, 2022 show that Hartnett,
Hamm, and Price were discussing whether they should terminate Kelly or give him
another month on the PIP. Def.’s SUMF ¶ 116, ECF No. 24. They ultimately
reached the conclusion that Kelly was not progressing as they would have liked
and that the opportunity to improve performance had gone on too long. Pl.’s Opp.
Ex. BB, ECF No. 27-31. Hartnett tasked Bragg with conveying to Kelly the
company’s decision to terminate him for failing to make improvements to an
acceptable level, and Bragg did so in a meeting with Kelly on March 10, 2022.
Def.’s SUMF ¶ 119, ECF No. 24.
Kelly was 52 years old at the time of his termination. Kinder Morgan did
not immediately fill Kelly’s position as Operations Superintendent. Def.’s SUMF
¶ 131, ECF No. 24. Bragg, who was ten years older than Kelly, retired in the
following months. Def.’s SUMF ¶¶ 126-27, ECF No. 24. In June 2022, Kinder
Morgan promoted a 36-year old crew leader into the Operations Manager position
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vacated by Bragg. Def.’s SUMF ¶ 138, ECF No. 24.
II.

PROCEDURAL BACKGROUND
After filing an administrative charge, Kelly filed this lawsuit here. Count I

of his complaint, as amended on December 7, 2023, asserts four types of violation
of the ADA. Count II asserts two types of violation of the FMLA. Count III
asserts a violation of the ADEA. Counts IV and V assert violations of the PHRA
for disability (like Count I) and for age (like Count III). Am. Compl., ECF No. 17.
On March 15, 2024, Kinder Morgan moved for summary judgment,
supported by a Statement of Undisputed Material Facts. Def.’s Mot. Summ. J.,
ECF No. 22; Def.’s SUMF, ECF No. 24. Plaintiff responded on April 19, 2024
with a memorandum of law, a response to Defendant’s statement of facts, and his
counterstatement of undisputed material facts. Pl.’s Opp., ECF No. 27; Pl.’s Resp.,
ECF No. 27-1. Kinder Morgan filed a reply and responded to the counterstatement
of facts on May 6, 2024. Def.’s Reply, ECF No. 30; Def.’s Resp., ECF No. 30-1.
III.

LEGAL STANDARD
Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A factual dispute is “genuine” if the evidence would permit

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a reasonable jury to return a verdict for the nonmoving party. Id. The moving party
“always bears the initial responsibility of informing the district court of the basis for
its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Where, as here, the moving party does not have the burden of proof on the
relevant issues, the court “must determine that the deficiencies in the opponent’s
evidence designated in or in connection with the motion entitle the moving party to
judgment as a matter of law.” Anchorage Assocs. v. Virgin Islands Bd. of Tax
Revenue, 922 F.2d 168, 175 (3d Cir. 1990) (citing Celotex Corp., 477 U.S. 317). If
the facts alleged by the movant are not disputed, the Court may grant summary
judgment “if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
In ruling on a motion for summary judgment, the Court must draw all
inferences from the facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In
opposing a motion for summary judgment, the nonmoving party may not “rely
merely upon bare assertions, conclusory allegations or suspicions.” Fireman’s Ins.
Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). The materials
in the record that parties may rely on include “depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or
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other materials.” Fed. R. Civ. P. 56(c)(1)(A).
IV.

DISCUSSION
Kinder Morgan alleges that Kelly’s claims fail because his termination was

due to performance issues unrelated to disability, leave usage, or his age. It also
contends that it did not subject him to harassment nor deny him use of protected
leave during his employment. However, Kelly has presented evidence that raises
genuine issues of material fact as to several of his claims when viewed in the light
most favorable to him.
A.

ADA Claims

Kelly alleges that Kinder Morgan violated the ADA both during his
employment and in terminating him either because he was disabled within the
meaning of the ADA or because Kinder Morgan regarded him as such. He identifies
four distinct theories in Count I: adverse action, retaliation, hostile work
environment, and failure to provide reasonable accommodations.
Our Court of Appeals recognizes that the ADA prohibits an employer from:
(1) subjecting the employee to an adverse employment action motivated by prejudice
or fear; or (2) failing to provide a reasonable accommodation for a disability. Taylor
v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1998). The ADA also prohibits
retaliation on the basis of certain activities protected by statute.

42 U.S.C.

§ 12203(a); Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).

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The ADA discrimination and retaliation claims are adjudicated subject to the
burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). If a plaintiff makes
out a prima facie case of discrimination or retaliation, the burden shifts to the
defendant employer “to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If the defendant
carries this burden, the plaintiff must then prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant are a pretext for discrimination.
Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999). He can do
so either by pointing to reasons to disbelieve the employer’s stated reasons or by
pointing to evidence supporting a conclusion that the improper reason was more
likely than not the reason for the termination. Fuentes v. Perskie, 32 F.3d 759, 76465 (3d Cir. 1994).
Two of Kelly’s ADA claims will proceed past summary judgment, for the
reasons set forth below.
1.

Adverse action claim

A plaintiff seeking relief for an adverse employment action that he suffered
due to disability bears the initial burden of establishing a prima facie case, that: (1)
he has a disability as defined by the ADA, or is perceived as disabled; (2) he was
“qualified” to perform the essential functions of the position; and (3) he was

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subjected to the adverse action, e.g., terminated, “because of” the disability (or
perceived disability). Gaul v. Lucent Tech., Inc., 134 F.3d 576, 580 (3d Cir. 1998).
Kinder Morgan does not contend that Plaintiff was not “qualified” for the
position he held. Rather, it challenges whether he had a disability and whether the
disability was the cause of his termination.
Congress has defined “disability” in the ADA, with respect to an individual,
to mean: “(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of such an impairment; or (C)
being regarded as having such an impairment” as described in the act. 42 U.S.C.
§ 12102(1). It defined “major life activities” to include, but not be limited to,
“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).
Congress has since reiterated that: the statutory definition of “disability” in the
ADA should be “construed in favor of broad coverage of individuals …, to the
maximum extent” permitted by the terms of the statute; the term “substantially
limits” must be interpreted consistently with the findings and purposes of the ADA
Amendments Act of 2008; and an impairment that substantially limits one major
life activity may reflect a disability even if it does not limit other major life
activities. Id. § 12102(4).
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Kelly contends that he is a qualified individual with a disability because he
suffered from “very serious back and leg problems including disc problems, spinal
stenosis, neuropathy, and other serious health complications” and that the severe
pain these conditions causes limited his ability, at times, to perform daily activities
such as “moving and bending (among other daily life activities).” Am. Compl.
¶¶ 24-25, ECF No. 17. Kinder Morgan responds that Kelly does not meet the
definition of disability because he denied that he was “disabled” when questioned
at his deposition and because he testified as to the various physical functions of his
position at Kinder Morgan that he could still perform despite his back problems.
Def.’s Mem. of Law 14-15, ECF No. 22-1.
Whether Kelly has a disability under the ADA implicates questions of fact
that preclude summary judgment. Kelly testified in his deposition that his back
problems prevented him from walking for considerable periods of time and lifting
over 50 lbs. Pl.’s Opp. Ex. A, Kelly Dep. 237-38, 240, ECF No. 27-4. He also
testified that he would call out at times when work was slow if his back was
bothering him, and that he would tell Bragg when his absences were due to
flareups of back pain. Id. at 240-41, 244, 349-40. He stated in an affidavit he
submitted with his opposition to Kinder Morgan’s summary judgment motion that
Bragg asked him if he was failing to board and inspect ships – one of the areas in
which his performance was viewed as deficient – because back pain prevented him
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from doing the necessary climbing. Pl.’s Opp. Ex. B, Kelly Aff. ¶ 14, ECF No. 275. With this testimony, Kelly has adduced sufficient evidence to raise a genuine
issue of material fact as to his protected status under the ADA and/or his
employer’s perception that he had a disability.
With respect to the causal connection, it is undisputed that at least some of
the areas in which Kelly was identified as having deficient performance – which
were then cited as the reason for his termination – related to his absences and
concerns that he was not performing required tasks, such as boarding vessels, for
reasons associated with his back condition. Kelly satisfies the prima facie
elements for purposes of summary judgment review.
Under the McDonnell Douglas framework, once a plaintiff makes out a
prima facie case of disability discrimination in his termination, then the employer
must articulate a non-discriminatory reason for taking that action against him.
Kinder Morgan contends that Kelly was terminated due to performance issues and
lack of progress in making improvements in the areas identified in the PIP process
that are unrelated to attendance. Kinder Morgan satisfies its burden at the
summary judgment stage.
Then the burden returns to the employee to point to reasons a factfinder
could disbelieve the employer or conclude that discriminatory animus was more
likely than not the reason for the termination. These questions require evaluations
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that must be made by a jury. These facts do not warrant summary judgment for
Kinder Morgan.
2.

Retaliation claim

Kelly also claims that his termination was an act of unlawful retaliation for
requesting accommodation of his disability.
With respect to retaliation, the ADA provides:
No person shall discriminate against any individual
because such individual has opposed any act or practice
made unlawful by this chapter or because such individual
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under
this chapter.
42 U.S.C. § 12203(a). The Third Circuit has held that prohibited conduct under this
section of the ADA includes “retaliation against an employee for requesting an
accommodation.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir.
2010).
To present a prima facie case of ADA retaliation, Kelly must show that (1) he
participated in an activity protected by the ADA, (2) he was subjected to a materially
adverse action at the time, or after, the protected conduct took place, and (3) there
was a causal connection between the protected activity and the adverse action.
Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). A request for
reasonable accommodations in good faith constitutes participating in an activity
protected by the ADA and fulfills the first prong of this analysis. Shellenberger v.
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Summit Bancorp, Inc., 318 F.3d 183, 190-91 (3d Cir. 2003). Leave time to recover
from a condition can be a reasonable accommodation under the ADA.

See

Conoshenti v. Public Svc. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2004)
(suggesting that a temporary leave of absence might be considered a reasonable
accommodation). The causation element of this cause of action can be met by
unusually suggestive temporal proximity, a pattern of antagonism, or where the
record as a whole permits an inference of causation. LeBoon v. Lancaster Jewish
Cmty. Ctr. Ass’n, 503 F3d. 217, 232-33 (3d Cir. 2007).
Kinder Morgan contends that the only ADA-protected activity in which
Kelly engaged were his requests for “block leave” – his FMLA leaves of absence –
and that those requests for leave were not the cause of his termination. It contends
there is no temporal proximity between his leave requests and his termination
because the termination decision was effectively made as a result of his lack of
improvement while on the PIP, which pre-dated his final leave request, even if the
decision was not implemented until March 2022, after Kelly returned from leave.
Kelly considers the ADA-protected activity in which he engaged as his requests
and utilization of “ADA and FMLA qualifying protected medical leave to care for
his medical conditions.” Pl.’s Opp. 13, ECF No. 27-1. He refers to taking “block
leave” to care for his various medical conditions – as recognized by Kinder
Morgan as well – but also to his periodic call-outs when he had flare-ups of his
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back condition, which he believes should have been excused as an accommodation
of his disability. Id. at 15.
The record yields more than one interpretation of how Kinder Morgan
viewed Kelly and the impact of his unscheduled absences on its decision to
terminate his employment. With respect to his use of block leave, the record
demonstrates that Kinder Morgan terminated Kelly not long after his return to
work at the end of 2021. The final PIP meeting he had with Bragg prior to his
termination, in February 2022, again identified his attendance as an area in which
he had not made acceptable progress. A jury could reasonably find – as Kelly
himself believed – that the comment in the February 2022 PIP meeting notes that
he “continues to trend towards not providing ample notice to management for
personal issues causing him to miss time at work” was a reference by Bragg to
Kelly’s detox leave. Pl.’s Opp. Ex. Y, ECF No. 27-28; see also id. (reflecting
response by Kelly that he notified Hartnett at the start of his short-term disability
leave). In addition, the first documentation that Kinder Morgan was contemplating
termination was memorialized in communications just after Kelly made his request
for that leave on November 30, 2021. A reasonable jury could find from the record
that Kinder Morgan’s decision to terminate Kelly would not have occurred but for
his unscheduled requests for leave arising from his back issues, including his lastminute request to take leave to step down from pain medications.
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Kelly has cast sufficient doubt on Kinder Morgan’s reasoning for the
termination to raise a genuine issue of material fact about whether its decision was
retaliatory.

His retaliation claim under the ADA will therefore proceed past

summary judgment.
3.

Hostile work environment claim

Kelly also alleges that he was subjected to a hostile work environment on
account of his disability. Am. Compl. ¶¶ 64, 67 & Count I, ECF No. 17. A hostile
work environment claim, first recognized in the context of Title VII, requires an
employee to show that: (1) he suffered intentional discrimination because of the
protected characteristic, (2) the discrimination was severe or pervasive, (3) the
discrimination detrimentally affected him, (4) the discrimination would
detrimentally affect a reasonable person in like circumstances, and (5) that there is a
basis for respondeat superior liability. Mandel v. M & Q Packaging Corp., 706 F.3d
157, 167 (3d Cir. 2013). To qualify as actionable harassment, there must have been
conduct attributable to the employer that was based upon the employee’s protected
characteristic and was “sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment.” Walton v. Mental Health
Ass’n of Southeastern Pa., 168 F.3d 661, 666 (3d Cir. 1999) (citing Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993)). The Third Circuit has assumed that the ADA
provides a cause of action for hostile work environment claims. Id.

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Kinder Morgan contends that Kelly cannot establish that he was harassed
“based on his disability” or that he was subjected to harassment that could be
described as “severe and pervasive.” Its concerns are justified. Kelly’s amended
complaint refers to “pretextual discipline and demeaning and/or discriminatory
treatment towards him.” Am. Compl. ¶ 64, ECF No. 17. But his brief in
opposition to Kinder Morgan’s summary judgment motion does not point to any
evidence in the record to enable a jury to find that a reasonable person would find
the work environment to be abusive. See Harris, 510 U.S. at 21-22 (requiring that
a plaintiff show that conduct was both subjectively and objectively hostile or
abusive). He has not shown that he was subjected to any harassment, including
threats, humiliating comments, or offensive utterances.
There is also a deficiency in the connection between any allegedly hostile
environment and the question of disability. Even if the PIP was triggered in part
based on absenteeism issues, some of which may have been associated with
disability, there is no evidence that the work environment had become oppressive
or hostile in any way. And Kelly made no complaints to upper levels of
management that Bragg, for example, was making the work environment hostile to
him on account of his alleged disability, even though he had open channels of
communication with those above Bragg in Kinder Morgan management. See, e.g.,
Pl.’s Opp. Ex. P, ECF No. 27-19 (11/30/21 email from Kelly to Hartnett, the
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Terminal Manager).
Kelly fails to demonstrate that he was subjected to any harassment rising to
the level of a hostile working environment based on his disability. Summary
judgment will be granted to Kinder Morgan as to this claim.
4.

Failure to accommodate claim

The final claim that Kelly asserts under the ADA is that Kinder Morgan did
not satisfy its obligation to offer a reasonable accommodation of his disability.
The ADA requires an employer to make “reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee,” unless the employer can “demonstrate
that the accommodation would impose an undue hardship on the operation of [its]
business[.]” 42 U.S.C. § 12112(b)(5)(A). This cause of action requires the employee
to show that: “1) the employer knew about the employee’s disability; 2) the
employee requested accommodations or assistance for his or her disability; 3) the
employer did not make a good faith effort to assist the employee in seeking
accommodations; and 4) the employee could have been reasonably accommodated
but for the employer’s lack of good faith.” Taylor v. Phoenixville Sch. Dist., 184
F.3d 296, 319-20 (3d Cir. 1998).
This cause of action is inapplicable here.

Kelly received the only

accommodation that he ever requested for any disability he had: block leave time.

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Kelly does not allege that he was denied other requested accommodations. As Kelly
has not introduced evidence sufficient to support a prima facie claim that he was
denied reasonable accommodations, summary judgment will be granted as to this
claim.
B.

FMLA Claims

The FMLA provides, in relevant part, that eligible employees are entitled to
12 workweeks of leave during any 12-month period due to the employee’s serious
health condition. 29 U.S.C. § 2612(a)(1). When an employee returns from FMLA
leave, the employer must restore the employee to the same or equivalent position he
held, with equivalent benefits and comparable conditions of employment.

Id.

§ 2614(a).
Kelly asserts that Kinder Morgan violated his rights under the FMLA in two
distinct respects. Only one of these claims raises genuine issues of material fact to
proceed to trial.
1.

FMLA Interference

The FMLA prohibits both “interference with proceedings and inquiries” and,
as described below, “interference with rights”:
(1) Exercise of rights
It shall be unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.
(2) Discrimination
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It shall be unlawful for any employer to discharge or in
any other manner discriminate against any individual for
opposing any practice made unlawful by this subchapter.
29 U.S.C. § 2615(a).
Actionable interference with the exercise of FMLA rights is established
where: (1) the employee was an eligible employee under the FMLA; (2) the
employer is a covered employer; (3) the employee was entitled to FMLA leave; (4)
the employee expressed an intention to take FMLA leave; and (5) the employer
denied leave to which the employee was entitled, i.e., the FMLA benefits “were
actually withheld.” Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014). The
McDonnell-Douglas burden shifting analysis does not apply in this cause of action.
Sommer v. Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006).
In his amended complaint, Kelly alleged a number of circumstances that he
believed constituted violations of the FMLA, including:
• “failing to inform Plaintiff of his individualized FMLA rights,” which he
believed reflected a failure to follow proper notice, designation, and
information regulations of the FMLA;
• “making negative comments and/or taking actions towards him that would
dissuade a reasonable person from exercising his rights under the FMLA;”
and
• “failing to designate Plaintiff’s intermittent time off during his employment
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with Defendant as FMLA-qualifying or FMLA protected leave.”
Am. Compl. ¶ 76, ECF No. 17.
As to the interference contentions, Kelly asserts in his brief in opposition to
summary judgment that he adduced evidence that Kinder Morgan’s conduct “would
discourage [him] from taking FMLA leave[.]” Pl.’s Opp. 37, ECF No. 24-1;see also
29 C.F.R. § 825.220(b) (reflecting Department of Labor interpretation that
interference claims under § 2615(a)(1) encompass actions that “restrain” or
“discourage” an employee from taking FMLA leave). He also noted that Kinder
Morgan “never presented him with his rights under the FMLA related to his
intermittent leave” – presumably a reference to unscheduled call-outs that Kelly says
he attributed to back pain – and to his January 2022 COVID-19 absences. Pl.’s Opp.
37, ECF No. 24-1. This evidence, however, does not satisfy the criteria for an
interference claim.
This cause of action requires the employee to have expressed an intention to
take FMLA leave, following which the employer denied leave. Our Court of
Appeals is clear on this point.2 See Ross, 755 F.3d at 191-92; Sommer, 461 F.3d at

2

Plaintiff cites to non-binding district court decisions suggesting that actionable
FMLA interference includes conduct by the employer that could have a “chilling
effect” on the employee’s desire to invoke his FMLA rights. Pl.’s Opp. 36-37,
ECF No. 27-1. This theory, however, has not been accepted by the Third Circuit.
Plaintiff ignores the clear precedents of Ross, supra, and Capps v. Mondelez
Global, 847 F.3d 144 (3d Cir. 2017), which require that the employee have been
denied an FMLA benefit to which he was entitled in order to make out an
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399; Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Here, Kelly
requested FMLA leave at three different points in his employment, the last of which
was at the end of November 2021. He was granted each leave he requested. There
is no evidence in the record from which a jury could find that Kinder Morgan
restrained or discouraged Kelly from taking protected leave. Summary judgment
will be granted to Kinder Morgan on the FMLA interference claim.
2.

FMLA Retaliation

Kelly also alleges that he was retaliated against because he used FMLA leave.
To establish an FMLA discrimination or retaliation claim, an employee must
demonstrate that: (1) he invoked an FMLA right; (2) he suffered an adverse
employment action; and (3) his leave or exercise of his FMLA rights had a causal
connection to that adverse action. Ross, 755 F.3d at 193. As with the ADA
discrimination and retaliation provisions above, an employer can rebut this prima
facie case by articulating a legitimate reason for the adverse employment action.
Krouse, 126 F.3d at 500. If an employer meets that obligation, the burden shifts
back to the plaintiff to rebut the employer’s explanation of the reasoning behind the
adverse employment action. Id.
As described above as to the ADA retaliation claim, while Kinder Morgan
may have a strong case justifying termination on the basis of performance, there

interference claim.
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are questions of fact for a jury to decide as to whether Kelly’s invocation and use
of FMLA leave at the end of 2021 motivated the termination decision. While
Kinder Morgan was clearly concerned about Kelly’s performance prior to his
utilization of FMLA leave on November 30, 2021, there was not yet any
documentation that termination had been decided upon. Bragg testified that he had
decided to terminate around the time of the November 11, 2021 PIP meeting. Pl.’s
Opp. Ex. E, Bragg Dep. 63, ECF No. 27-8. However, other evidence in the record
casts doubt on the timing of that decision. An email message that Hartnett, the
terminal manager, composed on December 1, 2021 reflected only that termination
had been under consideration by Bragg and himself, but not that it was determined.
Pl.’s Opp. Ex. Q, ECF No. 27-20. Moreover, the record supports the view that
Hartnett and Bragg viewed Kelly’s perceived failure to coordinate the timing of his
FMLA leave to step down from his pain medications as further evidence that he
did not appreciate operational concerns. See id. In addition, following his return
from FMLA leave, Bragg again criticized Kelly in the February PIP meeting for
not providing ample notice when calling out “for personal issues.” Pl.’s Opp. Ex.
Y, ECF No. 27-28.
Kelly’s FMLA retaliation claim will proceed to trial because Kelly
demonstrates that there is a genuine dispute of material fact about whether he was
terminated due to his use of FMLA leave time.
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C.

ADEA Claim

The final federal claim Plaintiff asserts is one of age discrimination.
The ADEA prohibits employers from “discharg[ing] any individual or
otherwise discriminat[ing] against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1). To prevail on an ADEA claim, a plaintiff must establish
that age was the “but-for” cause of the adverse employment action. Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). This standard is also described as
meaning that the plaintiff’s age was “a determinative factor” in the termination
decision. Id.
Our circuit precedents assume that the ADEA analysis proceeds according to
the McDonnell Douglas burden-shifting framework utilized in other federal causes
of action. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d
Cir. 2015). The elements of a prima facie case of age discrimination are: (1) the
plaintiff is at least forty years old; (2) he suffered an adverse employment decision;
(3) he was qualified for the position in question; and (4) he was ultimately replaced
by another employee who was sufficiently younger so as to support an inference of
a discriminatory motive. Id. Where the plaintiff is not directly replaced, however,
the fourth element is satisfied if he provides facts which “if otherwise unexplained,
are more likely than not based on the consideration of impermissible factors.” Id.
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(quotation omitted).
Kelly was over 40 years old and was terminated from a position for which
he was qualified, so he satisfies prongs 1, 2, and 3. The question comes down to
whether the circumstances of the termination suggest that Kelly’s age was a
determinative factor in the termination decision. This record does not contain
sufficient evidence from which a jury could find age discrimination in the
termination decision. There is no direct evidence of age discrimination. No agerelated comments were ever made about Kelly by Bragg or anyone else. There is
no other evidence that Bragg maintained any animus towards Kelly based on his
age — Bragg was even older than Kelly.
Plaintiff relies upon two pieces of evidence to suggest that age was a
determinative factor in the termination decision. First, one of the items in the
annual review form, which Bragg previewed with Kelly at their August 30, 2021
meeting, concerned identifying a “successor.” Pl.’s Opp. Ex. I, ECF No. 27-12.
Kelly contends that because Bragg wanted him to identify a “successor,” he was
effectively pushing him to retire, which can be seen as age discrimination. This is
not a reasonable reading of the record. The “successor” item was just one item in
Kinder Morgan’s annual review form. It was not the focus of the plan to improve
Kelly’s performance, nor was the lack of an identified “successor” referenced in
any of the numerous emails that are in the record concerning the reasons Kinder
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Morgan was concerned about Kelly’s performance.
Second, Plaintiff believes that he was replaced on the night shift by the crew
leaders, all of whom were younger than he. While certain operational duties may
have been picked up by the crew leaders in Kelly’s absence on an interim basis,
there is no genuine dispute in the record that Kelly’s position had not been filled
even months later. There are no facts concerning a replacement from which a jury
could infer that Kelly’s age was a determinative factor in the company’s decision
to terminate him.
Kelly fails to make out a prima facie case of age discrimination. Summary
judgment will be granted on the ADEA claim.
D.

PHRA Claims

Finally, Kelly brings claims against Kinder Morgan under the Pennsylvania
Human Relations Act, 43 P.S. §§ 951-963, alleging discrimination on the basis of
his disability and/or perceived disability as well as his age. Am Compl. Counts IV,
V, ECF No. 17.
Disability and age discrimination claims under the PHRA are evaluated under
the same standards as claims under the ADA and ADEA. See Kelly v. Drexel Univ.,
94 F.3d 102, 105 (3d Cir. 1996) (approving analysis of PHRA claims as co-extensive
with ADA and ADEA claims); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306
(3d Cir. 1998).
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Because Kelly’s adverse-action and retaliation ADA claims against Kinder
Morgan raise genuine disputes of material facts, his PHRA claim of disability
discrimination on these bases in Count IV necessarily does as well. But the
deficiencies identified as to the age discrimination claim asserted under the ADEA
apply with the same force to the claim for age discrimination under the PHRA in
Count V. Therefore, summary judgment will be granted in part as to Kelly’s PHRA
claim of disability discrimination and in full as to his PHRA claim alleging age
discrimination.
V.

CONCLUSION
For the reasons discussed above, I will grant Defendant’s Motion for

Summary Judgment (ECF No. 22) as to Kelly’s ADA reasonable accommodations
and hostile work environment claims, his FMLA interference claim, his ADEA
claim, and his PHRA claims alleging failure to offer reasonable accommodations,
hostile work environment, and age discrimination. Summary judgment will be
denied as to Kelly’s adverse-action and retaliation ADA claims, his FMLA
retaliation claim, and his PHRA claim asserting adverse action disability
discrimination and retaliation. An appropriate order follows.

_s/ANITA B. BRODY, J._____
ANITA B. BRODY, J.

30